Opinion
CR 03-434 FMC.
July 14, 2003.
ORDER ON DEFENDANT'S MOTION TO DISMISS COUNTS 3, 4, AND 5
MOTION FOR RELEASE OF GRAND JURY TRANSCRIPTS
The matter came on for hearing on July 7, 2003, on defendant's Motion to Dismiss Counts 3, 4, and 5 of the Indictment. Defendant argued that the Indictment was defective, because it failed to allege that defendant had reason to believe the documents she possessed could be used to the injury of the United States or to the advantage of any other nation.
The Government responded that the plain language of 18 U.S.C. § 5793(e) does not require such an additional element.
The Court indicated its tentative decision to grant the Motion, and following oral argument, authorized further briefing on the issue. The Court has now read and considered the Government's Supplemental Brief, defendant's Response, and the Government's Supplemental Reply.
The Court was concerned that interpreting the statute to prohibit the unauthorized possession and retention of documents, unaccompanied by knowledge of the nature of the documents, or any "reason to believe" that they could injure the United States, would render the statute unconstitutionally vague, relying on Gorin v. United States, 312 U.S. 19, 26-27.
The Court is now persuaded that because § 793(e) requires a finding that defendant "wilfully" retained or delivered the documents, the scienter requirement is satisfied. In the context of a criminal statute, wilfully refers to a culpable state of mind. ". . . when used in the criminal context, a `willful' act is one undertaken with a `bad purpose.' In other words, in order to establish a `willful' violation of a statute, `the Government must prove that the defendant acted with knowledge that his conduct was unlawful.' Ratzlaf v. United States, 510 U.S. 135, 137, 114 S.Ct. 655, 657, 126 L.Ed.2d 615 (1994) . . . it generally means an act done with a bad purpose. [citations]" Bryan v. United States, 524 U.S. 184, (1998). Wilfully has been defined to mean an act done without ground for believing it is lawful. Roby v. Newton, 121 Ga. 679, 49 S.E. 694 [cited with approval in Bryan, supra). In United States v. Murdock, 290 U.S. 389, 394, the Court equated an act done wilfully as one done with a bad purpose.
The Government cannot, then, obtain a conviction of defendant for violation of 18 U.S.C. § 5793(e) without proving that she had unauthorized possession of documents relating to the national defense, and that she wilfully retained the same, knowing that her conduct was unlawful. See also U.S. v. Truong Dinh Hung, 629 F.2d 908, 918.
In light of the Courts, ruling on Defendant's Motion to Dismiss Counts 3, 4, and 5, the Court deems release of the grand jury transcripts as unnecessary.
Defendant's Motion to Dismiss is denied.
Defendant's Motion for Release of Grand Jury Transcripts is denied.